Crimes Act 1914

This section applies where:

a forensic procedure has been carried out on a person; and

there has been a breach of, or failure to comply with:

any provision of this Part in relation to a forensic procedure carried out on the person (including, but not limited to, any breach or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out); or

any provision of Division 8A with respect to recording or use of information on the Commonwealth DNA database system.

This section does not apply where:

a provision of this Part required forensic material to be destroyed; and

the forensic material has not been destroyed.

Section 23XY applies where this Part requires forensic material to have been destroyed.

This section applies to:

evidence of forensic material, or evidence consisting of forensic material, taken from the person by the forensic procedure; and

evidence of any results of the analysis of the forensic material; and

any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

Where this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:

the person does not object to the admission of the evidence; or

the court is satisfied on the balance of probabilities of matters that, in the court’s opinion, justify the admission of the evidence in the proceedings in spite of the failure to comply with the provisions of this Part.

The matters that may be considered by the court for the purposes of paragraph (4)(b) are the following:

the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;

the reasons given for the failure to comply with the provisions of this Part;

the gravity of the failure to comply with the provisions of this Part, and whether the failure deprived the person of a significant protection under this Part;

whether the failure to comply with the provisions of this Part was intentional or reckless;

the nature of the provision of this Part that was not complied with;

the nature of the offence concerned and the subject matter of the proceedings;

whether admitting the evidence would seriously undermine the protection given to persons by this Part;

any other matters the court considers to be relevant.

The probative value of the evidence does not by itself justify the admission of the evidence.

If a judge permits evidence to be given before a jury under subsection (4), the judge must:

inform the jury of the breach of, or failure to comply with, a provision of this Part; and

give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.